18-386

United States Court of Appeals

Second Circuit

Libertarian Party of Erie County, Michael Kuzma,

Richard Cooper, Ginny Rober, Philip M. Mayor, Michael
Rebmann, Edward L. Garrett, David Mongielo, John
Murtari, William Cuthbert,
Plaintiffs - Appellants,

v.

Andrew M. Cuomo, as Governor of the State of New York,

Eric T. Schneiderman, as Attorney General of the State
of New York, Joseph A. D'Amico, as Superintendent of
the New York State Police, Dennis M. Kehoe,
individually and as Wayne County pistol permit
licensing officer, M. William Boller, individually and
as Erie County pistol permit licensing officer, Matthew
J. Murphy, III,
Defendants - Appellees.

Proposed Reply Brief of Appellants

JAMES OSTROWSKI
/s/ James Ostrowski
Attorney for Appellants
Buffalo, New York 14216
(716) 435-8918
jameso@apollo3.com
1
 TABLE OF CONTENTS

CITATIONS 3
QUESTIONS PRESENTED 6
ARGUMENT 8

I. THE SULLIVAN ACT WAS NOT BASED ON 8

ACTUAL EVIDENCE OR LOGIC AND DID
NOT REDUCE THE HOMICIDE RATE IN
NEW YORK CITY.

II. THE INTERMEDIATE SCRUTINY STANDARD 23

IS CONTRARY TO SUPREME COURT
PRECEDENT.

CONCLUSION 39
CERTIFICATE OF COMPLIANCE 40

2
 CITATIONS

CASES

New York State Rifle & Pistol Ass'n, Inc. v. 26

Cuomo, 804 F.3d 242, 252 (2d Cir. 2015)

District of Columbia v. Heller, 554 U.S. 570 27-31

(2008)

McDonald v. City of Chicago, 561 U.S. 742 31-32

(2010)

New York State Rifle & Pistol Association, 32

Inc., et al., Petitioners v. City of

New York, New York, et al., 18-280)

BOOKS

Aeneid (II, 49) 34

Robert Nozick, Anarchy, State and Utopia 35

(Basic Books, 1977), pp. 32-33.

R. J. Rummel, Death by Government: Genocide 25

and Mass Murder in the Twentieth Century,

New Jersey: Transaction Publishers, 1994

3
 ARTICLES

M. Bridge, “Exit, Pursued by a “Bear”? New 9

York City’s Handgun Laws in the Wake of Heller
and McDonald,” 46 Columbia Journal of Law and
Social Problems 145, 151 (2012).

Brian Doherty “5 Problems with the New Study 13-14

'Proving' that More Background Checks Lowered
Connecticut's Gun Murder Rate by 40 Percent,”
Reason.com (Jun. 24, 2015).

R. Douglas Fields, “Fact Check, Gun Control 21-22

and Suicide: Statistics do not support a
connection between gun control and US suicide
rates,” PsychologyToday.com (Jul 24, 2016).

E. Kao, “The Crisis of Fatherless Shooters,” 16

Heritage.org (March 14, 2018).

G. Kessler, “Obama’s claim that ‘states with 22

the most gun laws tend to have the fewest gun
deaths’”, Washington Post, Oct. 5, 2015.

See, R. King, “217 years of homicide in New 10

York,” December 31, 2013; qz.com/162289/217-
Years -of-homicide-in-new-york/.

S. Kurutz, “The Age of the Mugger,” New York 36

Times (Oct. 24, 2004).

4
John Lott, “Bloomberg’s School of Public 17-20
Health Cherry Picked Claim that firearm
homicides in Connecticut fell 40% because of
a gun licensing law,” CrimeResearch.org (June
11, 2015).

Ryan McMaken, “With Few Gun Laws, New 37

Hampshire Is Safer Than Canada,” Mises.org
Dec. 15, 2015).

Ryan McMaken, “Pew: Homicide Rates Cut in Half 38

Over Past 20 Years (While New Gun Ownership
Soared),” Mises.org, (Oct. 27, 2015).

Ryan McMaken, “5 Tricks Gun-Control Advocates 38

Play,” Mises.org, (Nov. 1, 2016).

J. Ostrowski, “Thinking About Drug 10

Legalization,” Cato Institute Policy Analysis
No. 121 (May 25, 1989)

R. Shepard, “Do Jokes About the Big Apple Cut 36

to the Core?,” New York Times (June 19, 1975).

M. Walsh, “The Strange Birth of NY’s Gun 7-8

Laws,” NewYorkPost.com, Jan. 16, 2012.

WEBSITES

disastercenter.com/crime/mocrimn.htm 15

hawaii.edu/powerkills 25

5
 QUESTIONS PRESENTED

1. Was the Sullivan Act based on evidence or logic

and did it reduce the homicide rate in New York

City?

2. Is the intermediate scrutiny test contrary to

Supreme Court precedent?

6
 ARGUMENT

I. THE SULLIVAN ACT WAS NOT BASED ON

ACTUAL EVIDENCE OR LOGIC AND DID NOT
REDUCE THE HOMICIDE RATE IN NEW YORK
CITY.

Standard of Review. An order dismissing a complaint

for failure to state a cause of action is reviewed de

novo.

The appellees tout the Sullivan Act as a well-

intentioned response to “the rising tide of gun

violence in New York City and elsewhere” and claim it

was well-founded and has worked. Appellees’ Brief at

page 1. On the contrary, the origins of the statute

are a matter of dispute and like much progressive

legislation, its justification is the unproven

assertion that its goals were achievable and achieved.

See, M. Walsh, “The Strange Birth of NY’s Gun Laws,”

7
NewYorkPost.com, Jan. 16, 2012. 1
0F “At least part of the

motivation behind the Sullivan Act was a desire to keep

1
“The father of New York gun control was Democratic
city pol “Big Tim “Sullivan — a state senator and
Tammany Hall crook, a criminal overseer of the gangs of
New York.
“In 1911 — in the wake of a notorious Gramercy Park
blueblood murder-suicide — Sullivan sponsored the
Sullivan Act, which mandated police-issued licenses for
handguns and made it a felony to carry an unlicensed
concealed weapon.
“This was the heyday of the pre-Prohibition gangs,
roving bands of violent toughs who terrorized ethnic
neighborhoods and often fought pitched battles with
police. In 1903, the Battle of Rivington Street pitted
a Jewish gang, the Eastmans, against the Italian Five
Pointers. When the cops showed up, the two underworld
armies joined forces and blasted away, resulting in
three deaths and scores of injuries. The public was
clamoring for action against the gangs.
“Problem was the gangs worked for Tammany. The
Democratic machine used them as shtarkers (sluggers),
enforcing discipline at the polls and intimidating the
opposition. Gang leaders like Monk Eastman were even
employed as informal “sheriffs,” keeping their turf
under Tammany control.
“The Tammany Tiger needed to rein in the gangs without
completely crippling them. Enter Big Tim with the
perfect solution: Ostensibly disarm the gangs — and
ordinary citizens, too — while still keeping them on
the streets.
“In fact, he gave the game away during the debate on
the bill, which flew through Albany: “I want to make it
so the young thugs in my district will get three years
for carrying dangerous weapons instead of getting a
sentence in the electric chair a year from now.”
8
firearms out of the hands of recent immigrants from

Italy and Southern Europe — perceived to be prone to

violence — by giving the New York Police Department

(NYPD) the power to grant or deny permits.” 2

1F No

scientific proof of the overall efficacy of the law is

produced in the appellees' brief. Nor is there any

mention of why there was a rising tide of gun violence

at that time as a scientific, evidence-based approach

would require. Rather, it appears that guns (inert

“Sullivan knew the gangs would flout the law, but

appearances were more important than results. Young
toughs took to sewing the pockets of their coats shut,
so that cops couldn’t plant firearms on them, and many
gangsters stashed their weapons inside their
girlfriends’ “bird cages” — wire-mesh fashion
contraptions around which women would wind their hair.
“Ordinary citizens, on the other hand, were disarmed,
which solved another problem: Gangsters had been
bitterly complaining to Tammany that their victims
sometimes shot back at them.
“So gang violence didn’t drop under the Sullivan Act —
and really took off after the passage of Prohibition in
1920. Spectacular gangland rubouts — like the 1932
machine-gunning of “Mad Dog” Coll in a drugstore phone
booth on 23rd Street — became the norm.”
2
M. Bridge, “Exit, Pursued by a “Bear”? New York City’s
Handgun Laws in the Wake of Heller and McDonald,” 46
Columbia Journal of Law and Social Problems 145, 151
(2012).
9
pieces of metal) and law-abiding gun owners were simply

made the scapegoats for a problem the state legislature

apparently was unable to solve.

The evidence shows that the Sullivan Act did not in

fact measurably reduce gun violence in New York City,

which continued to slowly rise through Alcohol

Prohibition and only declined at the precise time when

Prohibition was repealed. Then the murder rate

ballooned up in the 1960’s before declining in the

1990’s. See, R. King, “217 years of homicide in New

York,” December 31, 2013; qz.com/162289/217-years-of-

homicide-in-new-york/.

Thus, it appears that the murder rate operates

almost entirely independently of gun laws which is

pretty much what common sense would suggest. The data

show for example, that the illegal trade in alcohol,

heroin or cocaine seems to be correlated with a rise in

murders. Id.; see also, J. Ostrowski,“Thinking About

Drug Legalization,” Cato Institute Policy Analysis No.

121 (May 25, 1989), Figure No. 1 (showing violent crime

10
increasing after alcohol Prohibition and declining

after repeal).

The Appellees argue that under the intermediate

scrutiny test (see Point II below), a gun law will be

upheld “’so long as the government produces evidence

that fairly supports its rationale.’” [Brief, p. 48,

citing Jiminez. As pointed out below, this test gives

zero weight to the value of the right to bear arms, but

that is not its only defect. Obviously, since this

case was dismissed on the pleadings, the government has

submitted no “evidence” here at all, meaning,

testimony, expert testimony and documents or data

tested under cross-examination. Rather, on appeal, the

appellees reply primarily on three studies.

The first problem with the studies is that there is

no agreement on the ground rules: what are the criteria

of a study that would justify a gun control law? The

question is not even broached! What are the rules for

the debate? A proper understanding of the purposes of

the right to bear arms would yield a set of criteria

11
for evaluating the so-called “evidence” that is

entirely different from the ones set up by judicial and

non-judicial opponents of the right to bear arms which

appear to be: the slightest bit of so-called evidence,

consisting of even one tendentious, flawed and jerry-

rigged so-called “academic” study, that shows that at

least one life might be saved by a gun control law, is

sufficient to justify the law under the intermediate

scrutiny test rejected by the Supreme Court. See,

Point II, below.

In sharp contrast, a test that properly takes

account of the true purposes of the Second Amendment

would look something like this: No gun control law

would be justified unless there was firm evidence that

the reduction in crime it would cause [A] would be

greater than the harm it would do to the right of the

people to retain their right to sovereignty, deter

government tyranny, deter mass murder by the government

and deter the political instability seen in many

countries without a well-armed citizenry [B], PLUS the

12
increased crime caused by the direct and indirect

effects of reduced availability of firearms to law-

abiding citizens [C]. Thus, it would need to be proven

that A > (B + C). No pro-gun control advocate has ever

proven this or even conceived of it or tried to prove

it. Further, there is no known methodology available

to prove this which is why we stated in our primary

brief, sneered at by the Appellees, that it is very

difficult to prove anything in the social sciences by

statistics. Apropos of that is the fact that

Appellees’ own brief which proves nothing of relevance

to this lawsuit by the methodologically-flawed studies

they cite. They have proven nothing of value and their

studies should be disregarded by this Court. As Brian

Doherty wrote, addressing yet another bogus study study

cited by the Appellees:

13
 “Given the amazingly complicated set of causes
and incentives feeding into any human decision—
and every gun homicide is the result of a human
decision—establishing that the change in
background check laws that "led to" a reduction
in gun homicides "caused" them (even in that
one Connecticut case, much less concluding that
such laws can be relied on to have that effect
in other places and times) is likely beyond any
final authoritative conclusion via the usual
methods of the social sciences.” “5 Problems
with the New Study 'Proving' that More
Background Checks Lowered Connecticut's Gun
Murder Rate by 40 Percent,” Reason.com (Jun.
24, 2015).

Even assuming that the intermediate scrutiny

balancing test (already rejected by the Supreme Court,

see Point II) is valid and assuming there is some

scientific way to balance costs and benefits among

individual human beings with separate lives whose lives

cannot be added together or subtracted like so many

pennies or apples, at a minimum, the proper test would

have to somehow measure all of the harm caused by a gun

control law against all of the benefits. Thus, a

limited study of a small number of years of murder

rates in Missouri would not remotely qualify. What

14
about robbery, rape, assault and burglaries? These are

totally ignored by the study cited by the Appellees.

A quick look at Missouri crime rates since the

repeal of the licensing law shows, not only a drastic

overall decline in violent crime but an apparent

reduction in many categories of violent crime. See,

http://www.disastercenter.com/crime/mocrimn.htm (based

on Uniform Crime Reports). For example the violent

crime rate per 100,000 was 545.6 the last full year of

licensing (2006) but only 519.4 in 2016 and under 500

every year from 2008 (the first full year of freedom

from licensing) through 2015. Robberies, aggravated

assaults, burglaries, larcenies and vehicle thefts were

all way down. Thus, the study cited by the appellees

is junk science as noted in our primary brief.

The appellees cite a study alleging that

Connecticut’s licensing law was responsible for a 40%

reduction in the state’s firearm homicide rate. Even

if true, that would prove nothing of importance in the

debate as what matters is the overall rate of all

15
violent crime in the state which the study does not

address. What the appellees do not tell the Court is

that the study was funded by an uber-progressive gun

control organization known as the Joyce Foundation.

One of their goals is to reduce “gun violence through

state policy reform, research, education, and legal

strategies.” That of course means legal gun

restrictions as opposed to dealing with the innumerable

factors that lead to violence but are either not

amenable to classic progressive (coercive) solutions,

e.g., broken homes, 3 or which may in fact be caused by

2F

prior progressive policies such as the war on drugs.

Additionally, all four authors work for the Bloomberg

School of Public Health, named after the notorious

opponent of the right to bear arms Michael Bloomberg in

honor of his large contributions to the school. Two of

the four authors are associated with the Center for Gun

3
E. Kao, “The Crisis of Fatherless Shooters,”
Heritage.org (March 14, 2018).

16
Policy, a think tank opposed to the right to bear arms.

Bottom line: “Whose bread I eat, his song I must sing.”

As for the study itself, John Lott attacked the

methodology and conclusions of the study in great

detail:

“It makes little sense to examine one state

when ten states had have laws at least at some
time requiring licensing (Hawaii, Illinois,
Iowa, Missouri, Massachusetts, Michigan,
Nebraska, New Jersey, New York, North Carolina,
and the District of Columbia) and others have
expanded background checks. Missouri and now
Connecticut involves cherry picking. The
Missouri study is discussed here.
And Massachusetts serves as a strong example of
why not all states are examined. Connecticut
serves as the strongest evidence that gun
control advocates can point to but, as we will
see, this evidence is very weak.

“As the authors of the study note, from 1995

to 2005 the firearm homicide rate in
Connecticut indeed fell from 3.13 to 1.88 per
100,000 people, representing a 40% drop over a
ten-year period (“We estimate that the law was
associated with a 40% reduction in
Connecticut’s firearm homicide rates during the
first 10 years that the law was in place“).
However, unexplained is that the firearms
homicide rate was falling even faster
immediately prior to the licensing law. From
1993 to 1995, the Connecticut firearms homicide
rate fell from 4.5 to 3.13 per 100,000
residents, which means more than a 30% drop in
just two years. This represented a greater
17
decline than the 17% national decline over
those two years. Of course, Rudolph and his
co-authors do not address this inconvenient
fact (though if one looks at their Figure 1 on
page 3 this preceding drop is clearly visible).

“Their results are also extremely sensitive to

the last year that they pick. While it is true
that Connecticut’s firearm homicide rate fell
by 40% from 1995 to 2005, it only fell by 16%
between 1995 and 2006 and 12.5% between 1995
and 2010. Meanwhile the drops for the US and
the rest of the Northeast are much greater.
From 1995 and 2006, the firearm homicide rates
for the US and the rest of the Northeast fell
respectively by 27% and 22%. From 1995 and
2010, the drops were 39% and 31%. The longer
samples show a relative increase in
Connecticut’s firearm homicide rate whether
Rudolph et al. had looked at one additional
year or five additional years.

“The authors say that they limit the data to

2005 because one paper that they cite looked at
only 10 years after a law that they were
investigating (p. 4: “We conclude the post-law
period in 2005 to limit extrapolation in our
predictions of the counterfactual to 10 years,
as has been done previously“). But just
because a study on to cigarette smoking looks
at 12 years (not 10 as claimed (Proposition
99 went into effect on January 1, 1989 and
their sample went until 2000)) after the law
was in effect, doesn’t explain why a study on
crime would do the same thing. Indeed, the
reason given by the authors that Rudolph et al.
cite isn’t applicable to the current paper (p.
16: “It ends in 2000 because at about this time
anti-tobacco measures were implemented across
many states, invalidating them as potential
18
control units“). There was no similar adoption
across the states of handgun licensing laws.
Yet, if Rudolph et al. had gone for this
12th year as the study that they cite does, it
would have dramatically altered their results.
In three of the four years immediately after
the law was passed in 1995, Connecticut’s
firearm homicide rate rose relative to the
firearm homicides in Northeastern States. But
there is no theory offered for why
Connecticut’s firearm homicide rate would first
rise relative to other Northeastern states,
then fall relative to them for six years, and
then rise relative to them for four of the next
five years.

19
 “The same graph for next door Massachusetts
shows how bad things were after their 1998 gun
licensing law went into effect and why they
picked Connecticut with all the arbitrary years
that they examined.

“The Webster study also cherry-picks what crime

rates to look at. For over all violent crimes
as well as robbery and aggravated assault,
Connecticut’s crime rate was falling relative
to the rest of the US in the years prior to the
licensing law and rising afterwards.” 4 3F

Lastly, the appellees cite a study that allegedly

shows an association between a loosening of Missouri’s

licensing law and a rise in its suicide rate.

Appellees’ Brief at page 49. It is not at all clear

why suicides enter the calculus for infringing upon the

right to bear arms. Was suicide discussed at the

Constitutional Convention? The philosophical

justification for depriving millions of the means to

protect their lives to allegedly deter a few people

from choosing to end theirs is elusive to say the

4
“Bloomberg’s School of Public Health Cherry Picked
Claim that firearm homicides in Connecticut fell 40%
because of a gun licensing law,” CrimeResearch.org
(June 11, 2015).
20
least. Nevertheless, the evidence on this point is not

persuasive as explained in an article by Professor R.

Douglas Fields:

“There is no relation between suicide rate and

gun ownership rates around the world.
According to the 2016 World Health Statistics
report, (2) suicide rates in the four countries
cited as having restrictive gun control laws
have suicide rates that are comparable to that
in the U. S.: Australia, 11.6, Canada, 11.4,
France, 15.8, UK, 7.0, and USA 13.7
suicides/100,000. By comparison, Japan has
among the highest suicide rates in the world,
23.1/100,000, but gun ownership is extremely
rare, 0.6 guns/100 people. . . .
Secondly, gun ownership rates in France and
Canada are not low . . . The rate of gun
ownership in the U. S. is indeed high at 88.8
guns/100 residents, but gun ownership rates are
also among the world’s highest in the other
countries cited. Gun ownership rates in these
countries are as follows: Australia, 15,
Canada, 30.8, France, 31.2, and UK 6.2 per 100
residents. (3,4) Gun ownership rates in Saudia
Arabia are comparable to that in Canada and
France, with 37.8 guns per 100 Saudi residents,
yet the lowest suicide rate in the world is in
Saudia Arabia (0.3 suicides per 100,000).
Third, recent statistics in the state of
Florida show that nearly one third of the guns
used in suicides are obtained illegally,
putting these firearm deaths beyond control
through gun laws.(5)
Fourth, the primary factors affecting suicide
rates are personal stresses, cultural,
economic, religious factors and demographics.
According to the WHO statistics, the highest
21
 rates of suicide in the world are in the
Republic of Korea, with 36.8 suicides per
100,000, but India, Japan, Russia, and Hungary
all have rates above 20 per 100,000; roughly
twice as high as the U.S. and the four
countries that are the basis for the Post’s
calculation that gun control would reduce U.S.
suicide rates by 20 to 38 percent. Lebanon,
Oman, and Iraq all have suicide rates below 1.1
per 100,000 people--less than 1/10 the suicide
rate in the U. S., and Afghanistan, Algeria,
Jamaica, Haiti, and Egypt have low suicide
rates that are below 4 per 100,000 in contrast
to 13.7 suicides/100,000 in the U. S.” 5 4F

The political motive for interjecting the tragedy

of suicide into Second Amendment policy debates is,

however, crystal clear. It allows gun controllers to

confuse the public with misleading statistics on “gun

homicides,” discretely including suicides to exaggerate

the number of crime victims. Most “gun homicides” are

suicides. 6
5F

5
“Fact Check, Gun Control and Suicide: Statistics do
not support a connection between gun control and US
suicide rates,” PsychologyToday.com (Jul 24, 2016).
6
G. Kessler, “Obama’s claim that ‘states with the most
gun laws tend to have the fewest gun deaths’”,
Washington Post, Oct. 5, 2015.
22
 II. THE INTERMEDIATE SCRUTINY STANDARD IS
CONTRARY TO SUPREME COURT PRECEDENT.

Standard of Review. An order dismissing a complaint

for failure to state a cause of action is reviewed de

novo.

The appellees’ response to the defendant’s Second

Amendment arguments typifies the casual attitude of

many lawyers and judges towards the right to bear arms

since the revolutionary and controversial Heller and

McDonald decisions were issued: that is, they basically

ignore them. The predominant opinion in the legal

community for many years had been that the Second

Amendment was a dead letter that had some vague

relationship to the militia and colonial times and that

militias having passed from the scene, the Amendment

was essentially a meaningless vestige of primitive

times and primitive minds.

Specifically:

1. The appellees completely ignore the

primary purpose of the Second Amendment,

23
 to allow the people to defense themselves

against government tyranny;

2. the appellees use an intermediate scrutiny

balancing test rejected by Heller and

McDonald.

3. The appellees rely on biased and

tendentious academic studies which are

flawed for many reasons. See Point I,

above.

As for why opponents of the right to bear arms

ignore the actual purpose behind the right—protection

against government tyranny—I submit it is because they

simply have no rebuttal to it! The historical and

textual evidence for this proposition is undeniable.

The United States was born in a revolutionary war

precipitated by a British gun control mission at

Lexington and Concord.

The right has worked exactly as intended. While

the United States government has badly mistreated or

tolerated the mistreatment of a variety of persons not

24
considered to be citizens at the time including African

slaves and Native Americans, while aggressively making

efforts to ensure that both were disarmed, that same

government has not done what at least twenty other

modern regimes and an infinite number of early modern,

pre-modern and ancient regimes have done: engaged in

the mass killing of its own citizens. See, R. J.

Rummel, Death by Government: Genocide and Mass Murder

in the Twentieth Century, New Jersey: Transaction

Publishers, 1994; hawaii.edu/powerkills. Nor has the

United States government yet installed a totalitarian

police state or cancelled elections or had coups d’etat

or other political instability commonly seen in other

countries where the right to bear arms does not exist.

(Countries that have many coups d’état such as Haiti

and Thailand have low levels of gun ownership.) The

fact is that the Second Amendment has worked and those

who have an ideological urge to disarm Americans have

no rebuttal to that undeniable fact. Hence, they

25
pretend that this line of argument does not even exist,

thereby declaring their intellectual bankruptcy.

Under a proper understanding of the Second

Amendment, any proposal to ban or restrict law-abiding,

competent adults from owning weapons useful for every

kind of self-defense and that have been in common use

in America would be presumptively unconstitutional.

Yet, this is an academic point as no proponent of any

gun control law has even constructed an argument for

how their proposal does not violate the Second

Amendment’s core purpose.

Dealing then with the utterly disingenuous line of

argument advanced by proponents of gun control—that the

right to bear arms relates only to self-defense against

street crime--the first problem is that their argument

for a very lenient interest balancing test contradicts

the holdings of Heller and McDonald. The appellees

rely on the intermediate scrutiny test adopted by New

York State Rifle & Pistol Ass'n, Inc. v. Cuomo, 804

F.3d 242, 252 (2d Cir. 2015):

26
 “In making this determination, we afford
"substantial deference to the predictive
judgments of the legislature."[109] We remain
mindful that, "[i]n the context of firearm
regulation, the legislature is `far better
equipped than the judiciary' to make sensitive
public policy judgments (within constitutional
limits) concerning the dangers in carrying
firearms and the manner to combat those
risks."[110] Our role, therefore, is only to
assure ourselves that, in formulating their
respective laws, New York and Connecticut have
"drawn reasonable inferences based on
substantial 262*262 evidence."[111]”

In his dissent in Heller, Justice Breyer proposed a

balancing test very much like the one subsequently

adopted by New York courts and by this Court:

“Indeed, adoption of a true strict-scrutiny

standard for evaluating gun regulations would
be impossible. That is because almost every
gun-control regulation will seek to advance (as
the one here does) a “primary concern of every
government—a concern for the safety and indeed
the lives of its citizens.” United States v.
Salerno, 481 U. S. 739, 755 (1987). The Court
has deemed that interest, as well as “the
Government’s general interest in preventing
crime,” to be “compelling,” see id., at 750,
754, and the Court has in a wide variety of
constitutional contexts found such public-
safety concerns sufficiently forceful to
justify restrictions on individual liberties,
see e.g., Brandenburg v. Ohio, 395 U. S. 444,
447 (1969) (per curiam) (First Amendment free
speech rights); Sherbert v. Verner, 374 U. S.
398, 403 (1963) (First Amendment religious
27
rights); Brigham City v. Stuart, 547 U. S. 398,
403–404 (2006) (Fourth Amendment protection of
the home); New York v. Quarles, 467 U. S. 649,
655 (1984) (Fifth Amendment rights under
Miranda v. Arizona, 384 U. S. 436 (1966));
Salerno, supra, at755 (Eighth Amendment bail
rights). Thus, any attempt in theory to apply
strict scrutiny to gun regulations will in
practice turn into an interest-balancing
inquiry, with the interests protected by the
Second Amendment on one side and the
governmental public-safety concerns on the
other, the only question being whether the
regulation at issue impermissibly burdens the
former in the course of advancing the latter.

“I would simply adopt such an interest-

balancing inquiry explicitly. The fact that
important interests lie on both sides of the
constitutional equation suggests that review of
gun-control regulation is not a context in
which a court should effectively presume either
constitutionality (as in rational-basis review)
or unconstitutionality (as in strict scrutiny).
Rather, “where a law significantly implicates
competing constitutionally protected interests
in complex ways,” the Court generally asks
whether the statute burdens a protected
interest in a way or to an extent that is out
of proportion to the statute’s salutary effects
upon other important governmental interests.
See Nixon v. Shrink Missouri Government PAC,
528 U. S. 377, 402 (2000) (Breyer, J.,
concurring). Any answer would take account both
of the statute’s effects upon the competing
interests and the existence of any clearly
superior less restrictive alternative. See
ibid. Contrary to the majority’s unsupported
suggestion that this sort of “proportionality”
approach is unprecedented, see ante, at 62, the
28
 Court has applied it in various constitutional
contexts, including election-law cases, speech
cases, and due process cases. See 528 U. S., at
403 (citing examples where the Court has taken
such an approach); see also, e.g., Thompson v.
Western States Medical Center, 535 U. S. 357,
388 (2002) (Breyer, J., dissenting) (commercial
speech); Burdick v. Takushi, 504 U. S. 428, 433
(1992) (election regulation); Mathews v.
Eldridge, 424 U. S. 319, 339–349 (1976)
(procedural due process); Pickering v. Board of
Ed. of Township High School Dist. 205, Will
Cty., 391 U. S. 563, 568 (1968) (government
employee speech).

“In applying this kind of standard the Court

normally defers to a legislature’s empirical
judgment in matters where a legislature is
likely to have greater expertise and greater
institutional factfinding capacity. See Turner
Broadcasting System, Inc. v. FCC, 520 U. S.
180, 195–196 (1997) ; see also Nixon, supra, at
403(Breyer, J., concurring). Nonetheless, a
court, not a legislature, must make the
ultimate constitutional conclusion, exercising
its “independent judicial judgment” in light of
the whole record to determine whether a law
exceeds constitutional boundaries. Randall v.
Sorrell, 548 U. S. 230, 249 (2006) (opinion of
Breyer, J.) (citing Bose Corp. v. Consumers
Union of United States, Inc., 466 U. S. 485,
499 (1984) ).”

Justice Scalia ingeniously responded that the

Second Amendment had already done all the interest

balancing the right to bear arms needed:

29
“Justice Breyer moves on to make a broad
jurisprudential point: He criticizes us for
declining to establish a level of scrutiny for
evaluating Second Amendment restrictions. He
proposes, explicitly at least, none of the
traditionally expressed levels (strict
scrutiny, intermediate scrutiny, rational
basis), but rather a judge-empowering
“interest-balancing inquiry” that “asks whether
the statute burdens a protected interest in a
way or to an extent that is out of proportion
to the statute’s salutary effects upon other
important governmental interests.” Post, at 10.
After an exhaustive discussion of the arguments
for and against gun control, Justice
Breyer arrives at his interest-balanced answer:
because handgun violence is a problem, because
the law is limited to an urban area, and
because there were somewhat similar
restrictions in the founding period (a false
proposition that we have already discussed),
the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED.

“We know of no other enumerated constitutional

right whose core protection has been subjected
to a freestanding “interest-balancing”
approach. The very enumeration of the right
takes out of the hands of government—even the
Third Branch of Government—the power to decide
on a case-by-case basis whether the right
is really worth insisting upon. A
constitutional guarantee subject to future
judges’ assessments of its usefulness is no
constitutional guarantee at all. Constitutional
rights are enshrined with the scope they were
understood to have when the people adopted
them, whether or not future legislatures or
(yes) even future judges think that scope too
broad. We would not apply an “interest-
30
 balancing” approach to the prohibition of a
peaceful neo-Nazi march through Skokie.
See National Socialist Party of
America v. Skokie,432 U. S. 43 (1977) (per
curiam). The First Amendment contains the
freedom-of-speech guarantee that the people
ratified, which included exceptions for
obscenity, libel, and disclosure of state
secrets, but not for the expression of
extremely unpopular and wrong-headed views.
The Second Amendment is no different. Like the
First, it is the very product of an interest-
balancing by the people—which Justice
Breyer would now conduct for them anew. And
whatever else it leaves to future evaluation,
it surely elevates above all other interests
the right of law-abiding, responsible citizens
to use arms in defense of hearth and home.”

The Supreme Court in McDonald reiterated its

rejection of the balancing of interests approach

proposed by the appellees:

“Municipal respondents assert that, although

most state constitutions protect firearms
rights, state courts have held that these
rights are subject to "interest-balancing" and
have sustained a variety of restrictions. Brief
for Municipal Respondents 23-31. In Heller,
however, we expressly rejected the argument
that the scope of the Second Amendment right
should be determined by judicial interest
balancing, 554 U.S., at ___ - ___, 128 S.Ct.,
at 2820-2821, and this Court decades ago
abandoned "the notion that the Fourteenth
Amendment applies to the States only a watered-
down, subjective version of the individual
guarantees of the Bill of Rights," Malloy,
31
 supra, at 10-11, 84 S. Ct. 1489 (internal
quotation marks omitted).”

Since the appellees rely on an analytical approach

explicitly rejected by the Supreme Court in its only

two relevant Second Amendment cases, its entire line of

argument must be rejected by this Court.

At this point in the continuing evolution of Second

Amendment doctrine, with the Supreme Court having

recently accepted only its third case involving the

right to bear arms (New York State Rifle & Pistol

Association, Inc., et al., Petitioners v. City of New

York, New York, et al., 18-280) and reviewing New York

law, this fact must be clearly understood by all: the

intermediate scrutiny, balancing of interests test, was

originally developed by opponents of the Second

Amendment to negate the right to bear arms in actual

practice. The test was essentially the creation of

Justice Breyer in Heller as a fall-back position to his

initial opposition to any individual right to bear

arms.

32
 Justice Breyer endorsed Justice Stevens’ dissent,

in which he set forth the legal establishment’s view

that the right to bear arms is a dead letter as it only

protects collective rights related to the now defunct

militia. As a fallback position, Justice Breyer set

forth an interest-balancing test that was designed to

allow judges hostile to the right to bear arms to

provide a constitutional gloss to the pro forma

endorsement of any and all gun control legislation.

The actual, historical purpose of the Second

Amendment was to protect the natural, pre-existing

right of the people to self-defense in the broadest

possible sense, meaning, primarily, self-defense

against government tyranny but also self-defense

against possible foreign invasion, terrorism, domestic

unrest and secondarily against run of the mill street

crime. However, the test developed by those who do not

agree in the slightest with the right to bear arms,

naturally fails to incorporate in its contrived

balancing test any room for “weighing” the “interests”

33
protected by the right! ("Timeo Danaos et dona

ferentes" from Aeneid (II, 49), "Beware of Greeks

bearing gifts".)

Rather, as explained in appellees’ brief, courts

will uphold a challenged regulation where it is

“substantially related to the achievement of an

important governmental interest.” (Page 48.) Thus, in

that test, zero weight is given to the values protected

by the right and nearly absolute weight is given to the

interest of the government. Yet, the purpose of the

right is either to allow the people to protect

themselves against the government or protect themselves

when the government fails to do so. Thus, we have shown

that the intermediate scrutiny test was developed by

opponents of the right to bear arms whose main purpose

is to negate the right to bear arms.

Contrary to respondent’s contentions, there is no

definitive proof that the Sullivan Act has accomplished

a net good for society, even if social net good was a

scientifically valid category. That is, since it is

34
undisputed that guns are used in self-defense many

thousands of times each year, reducing their

availability no doubt increases the criminal

victimization of law-abiding individuals and there does

not appear to be any scientific way to prove that the

costs of that increased crime are somehow outweighed by

any speculative crime reduction legislation restricting

gun use might cause in the future. Robert Nozick

explains:

“[T]here is no social entity with a good that

undergoes some sacrifice for its own good.
There are only individual people, different
individual people, with their own individual
lives. Using one of these people for the
benefit of others, uses him and benefits the
others. Nothing more. What happens is that
something is done to him for the sake of
others. Talk of an overall social good covers
this up. (Intentionally?) To use a person this
way does not sufficiently respect and take
account of the fact that he is a separate
person, that his life is the only life he
has. He does not get some overbalancing good
from his sacrifice, and no one is entitled to
force this upon him-least of all a state or
government that claims his allegiance (as other
individuals do not) and that therefore
scrupulously must be neutral between its
citizens.” Anarchy, State and Utopia (Basic
Books, 1977), pp. 32-33.

35
 New York City through the decades was a laboratory

experiment in what happens when the government makes it

extremely difficult for citizens to obtain a pistol

permit. Muggings became a cultural institution in the

mid-60’s as described by the New York Times:

"’It was so easy to get mugged in those days,’

said Mr. Buggy [an undercover officer], now
retired and living in Middle Village, Queens.
‘I couldn't stagger down the street and not
have 10 muggers come after me.’ . . .
“As vast parts of the city -- Times Square,
Central Park, Upper Broadway -- became danger
zones, normally intrepid New Yorkers reacted
with paranoia and fear. Restaurant business
fell off. Errands were made in the light of
day. If people did venture out at night, they
walked in the middle of the street so nobody
could jump them from behind a building. Even
children carried ‘mugger's money,’ and sharing
mugging stories became fodder for dinner party
conversation.” S. Kurutz, “The Age of the
Mugger,” New York Times (Oct. 24, 2004).

Henny Youngman joked about it: “Guy walks up to a

fellow and says, ‘Do you know where Central Park is?’

Fellow says no, guy says, ‘Then I'll mug you right

here.’” R. Shepard, “Do Jokes About the Big Apple Cut

to the Core?,” New York Times (June 19, 1975).

36
 In any event, there are no studies that

scientifically prove that the benefits of handgun

licensing and other gun control measures outweigh all

the numerous costs since those costs are never fully

delineated by the result-oriented producers of such

studies.

Nevertheless, the following general facts about

guns, crime and gun control can be stated with

confidence:

1. Many high crime cities have strict gun

control laws.

2. In many of those high-crime cities, the

rate of gun ownership is low compared to

national rates.

3. While law-abiding citizens do generally

comply with gun control laws, criminals do

not.

4. Many states with lax gun laws and heavy

gun ownership have low crime rates. Ryan

McMaken, “With Few Gun Laws, New Hampshire

37
 Is Safer Than Canada,” Mises.org (Dec. 15,

2015).

5. From 1995 through 2012, the murder rate

declined while gun ownership increased.

Ryan McMaken, “Pew: Homicide Rates Cut in

Half Over Past 20 Years (While New Gun

Ownership Soared),” Mises.org, (Oct. 27,

2015).

6. Gun control advocates misuse statistics to

make the case for gun control stronger

than it is. For example, they speak of

“gun homicides” as opposed to overall

homicides. Ryan McMaken, “5 Tricks Gun-

Control Advocates Play,” Mises.org, (Nov.

1, 2016).

7. The crime problem in the United States is

often exaggerated by arbitrary and

unscientific comparisons with other

countries entirely dissimilar to the

United States. Id.

38
 Thus, even if logic would allow the rights of vast

numbers of law-abiding citizens to be sacrificed with a

resulting increased rate of criminal victimization as a

consequence if it was proven that gun control would be

a net benefit to society, the proponents of gun control

have failed to make that case.

CONCLUSION

The decision and order dismissing the amended

complaint should be reversed in all respects, with the

exception of the dismissal of the Libertarian Party of

Erie County, and the case remanded for further

proceedings.

Respectfully submitted,

February 19, 2019

______________________
James Ostrowski
Attorney for Appellants
63 Newport Ave.
Buffalo, New York 14216
(716) 435-8918
jameso@apollo3.com

39
 Certificate of Compliance

1. This document complies with the type-volume

limit of Fed. R. App. P. because, excluding

the parts of the document exempted by Fed.

R. App. P. 32(f) this document contains

fewer than 7,000 words.

2. This document complies with the typeface

requirements of Fed. R. App. P. 32(a)(5) and

the type-style requirements of Fed. R. App.

P. 32(a)(6) because: this document has been

prepared in a monospaced using Courier

New/Word 14 point type.

/s/ James Ostrowski

James Ostrowski
Attorney for Appellant
Dated: February 19, 2019

40